Thomas Sowell: "The Statue of Justice Wears a Blindfold"
Not in the world of BHO!
Read Mr. Sowell's comments here.
I had forgotten this - and I believe his appointee will be sitting under Justice while having "empathy" and making "policy" from the bench.
How they forget!
Read Mr. Sowell's comments here.
I had forgotten this - and I believe his appointee will be sitting under Justice while having "empathy" and making "policy" from the bench.
How they forget!
Labels: Politics
posted by Jim | 10:56 AM
4 Comments:
I'm going to start by posting in a comment you made over on Mediated:
"Your comment on the definition of 'freedom' changing over time sounds like the defense I am sure you would launch to defend BHO’s first SCOTUS appointment!! In my mind the definition of 'freedom' does not change and the definitions in the Constitution do not change!"
As we have seen, it is often hard to pin down language and written communication to simple meanings - lots of clarifications and examples are needed. So I'd have to disagree with the notion that "the definitions in the Constitution do not change". The words don't change, but it's pretty darn hard to pin down the precise meaning of various famous phrases (such as "cruel and unusual", "equal protection" and "due process" among many others).
I picked up a book called "Who Killed the Constitution" by Woods and Gutzman, and they argue that both parties have been active in setting aside constitutional limits in pushing for expanded federal powers. They discuss quite a few famous Supreme Court cases, but before diving into that kind of detail, I'd like to look at the Bill of Rights for a moment.
I think it's pretty clear that the Bill of Rights was intended as a check upon the powers of the federal government, trying to ensure limits on a number of particular 'hot button' issues. But as it's put in Amendment IX, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". I think they knew they could not make a comprehensive list, so they picked some areas that they knew people would be likely to want to legislate.
These days we hear about many proclaimed rights: right to privacy, right to health care, etc. These are clearly not enumerated in the Constitution, so the question is do they have any standing.
In my examples here, I think a "right to privacy" is something the Founding Fathers would have generally agreed with; the idea that any government would have the power to legislate what goes on inside your house among consenting adults (as long as not treasonous, etc.) seems to go against the grain of limiting government powers.
But a "right to healthcare" seems potentially different. On the one hand you could say that no one should be turned away by a caregiver for their beliefs. But frequently it feels like what is really being demanded is a "entitlement to healthcare" which seems far from anything the Constitution caters for!
The sentence you quote was reacting to your previous comment:
"...our sense of "freedom" is subject to change over time,..."
I saw the word "sense" as meaning "definition" and I believe it does - semantics again!
I have kept a quote from Stephen Markman, a Michigan State Supreme Court Justice, that summarizes my feeling on the Constitution and its interpretation very well:
"Myth or Misconception 8: The Constitution is a "living" document.
The debate between interpretivists and non-interpretivists over how to give meaning to the Constitution is often framed in the following terms: Is the Constitution a "living" document, in which judges "update" its provisions according to the "needs" of the times? Or is the Constitution an enduring document, in which its original meanings and principles are permanently maintained, subject only to changes adopted in acordance with its amending clause? I believe that it is better described in the latter sense. It is beyond dispute, of course, that the principles of the constitution must be applied to new circumstances over time - the Fourth Amendment on searches and siezures to electronic wiretaps, the First Amendment on freedon of speech to radio and television and the Internet, the interstate commerce clause to automibiles and planes, etc. However, that is distinct from allowing the words and principles themselves to be altered based upon the preferences of individual judges.
Our Constitution would be an historical artifact - a genuinely dead letter - if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices on "updating" it or replacing what some judges view as the "dead hand of the past" with contemporary moral theory. This is precisely what the Founders sought to avoid when they instituted a "government of laws, not of men.""
So he believes the Constitutions "words and principles" cannot be altered, but must be applied to new situations. We now get to the question: Do activist Judges "alter" the Constitution or simply "apply" its meaning to new situations. We need to debate individual cases to reach a conclusion, and them might not agree!
I agree with your comment on the Bill of Rights.
But "right" is a very, very subjective word, and the ability to agree on definitions - as we have seen - is the crux of the problem!
Your example of "right of privacy" is one most would agree on - although I would say your example is related to "property rights" as well as "privacy". This term has been turned on its head in Roe v Wade! (I bring this up not to get off on a tangent with R v W, which would tie us up for weeks, but only as an illustration!)
Most "rights" we hear about today I believe do not have "standing" but are attempts by our politicians to pander to various groups - quite cynical, but lots of examples around.
How do we fix this? That is the question we all need to figure out together!
Yes, these terms are all very hard to pin down precisely...
In general I think I agree with Markman's "words and principles" notion. But the next question is what exactly are the principles, and which ones take precedence in case of conflicts.
Rights are also, as you say, subjective, and they are not all enumerated. I just read something about a 'right to education' and had to think about that for a minute. In some sense there would clearly be an abuse if a child were kept illiterate by the parents. But how much education is someone entitled to? And how is it paid for? What exactly does a 'right' consist of?
I talked about "earned rights" earlier. Let's split rights into "earned rights" and "given rights".
An "earned right" is a right "earned" by the people in our republican system to protect them and their property - to keep their person and their property whole. Government - The People - guarantee these rights.
A "given right" is a right given by the Government (in this case by our representatives without our "earning" the right) or by the Judiciary. Each of us will feel differently about these "rights", depending on our views, needs, politics, et al.
In my mind healthcare and education do not fit the first definition - neither protects person or property (don't trivialize the word "protect" by saying keeping people from becoming ill and making them more competitive in the work market is "protection" - that is not what protect means in the sense I used it).
So my conclusion is they are both pushed for votes (pandering) at the cost of not allowing people to grow and supply these items for themselves, which helps the society grow!
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